In Depth

My friend, colleague, sometime-adversary and fellow DTCI board member, Phil Kalamaros,
recently wrote a thought-provoking column regarding civility (Indiana Lawyer, May 8, 2013). As I understood Phil’s
point, as much as “civility” is a worthy goal, the more important goal is for all of us to avoid the kinds of
egregious behaviors that may provoke an “uncivil” response.

I’d like to take Phil’s column a step further and consider how perception and psychology shape interactions in
general, and interactions among adverse lawyers in particular. An op-ed piece in the New York Times by Harvard psychology
professor Daniel Gilbert, “He Who Cast the First Stone Probably Didn’t” (nytimes.com, July 24, 2006), is
very enlightening in this regard.

Gilbert explained two principles of human interaction leading to conflict. First, people tend to focus on the consequences
of another person’s negative behavior, but when they themselves behave badly, they focus only on their reasons for behaving
that way. That is “[f]irst, because our senses point outward, we can observe other people’s actions,
but not our own. Second, because mental life is a private affair, we can observe our own thoughts but not the thoughts of
others.”

As a result, it is human nature for a person to disregard why the other person engaged in certain behavior, and
only consider the negative effect of that behavior. Meanwhile, that same person will focus more on why he engaged
in certain behavior (typically along the lines of “Well, he started it!”) more than the effect his behavior will
have on others.

Gilbert described a study in which volunteers played the roles of world leaders debating whether to initiate a nuclear strike.
When later shown transcripts of his own statements, the participant naturally remembered what had led him to say them, but
when shown transcripts of the other person’s statements, the participant naturally remembered how he himself responded
to them.

Gilbert’s second principle was that the retaliating person tends to escalate the retaliation while believing the retaliation
is proportionate to the provocation.

A study demonstrating this second principle hooked up pairs of volunteers to a machine that allowed each of them to exert
pressure on the other volunteer’s fingers. The researcher began by exerting pressure on the first volunteer’s
finger, then asked the first volunteer to exert the same amount of pressure on the second volunteer. The researcher then asked
the second volunteer to exert on the first volunteer’s finger the same amount of pressure he had just experienced.

Although each volunteer made a good-faith effort to apply equal pressure, the pressure each volunteer exerted was consistently
40 percent greater than the pressure the volunteer had just experienced. Gilbert described this as “a neurological quirk
that causes the pain we receive to seem more painful than the pain we produce, so we usually give more pain than we have received.”

He concludes that “[t]his leads to the escalation of mutual harm, to the illusion that others are solely responsible
for it and to the belief that our actions are justifiable responses to theirs.”

So how can we apply these lessons to how we interact with others, and how we might live up to our obligation to be civil
lawyers?

Under the professor’s analysis, we have to admit that civility is a matter of swimming upstream against human nature.
It requires an understanding of our own natures as well as that of others. Simply resolving to be “civil” is not
enough if we do not recognize these “neurological quirks.”

I therefore suggest that whenever any of us encounters behavior by an opponent we find upsetting and even offensive, we should
attempt to do two things that perhaps do not come naturally.

First, take a minute to try to understand why your opponent engaged in this behavior. Was there some provocation
or some other explanation (whether it truly justifies the behavior) that puts the behavior in a more reasonable perspective,
and therefore perhaps less offensive? Certainly, the end result of your analysis may be that there is no justification at
all, and your opponent is simply a jerk. But you may be surprised at the number of instances in which the behavior does not
seem so bad after you engaged in this exercise.

Second, take another minute to consider the effect and proportionality of your response to your opponent’s
behavior, and indeed whether you should respond at all. Just as you may still conclude from the first analysis that your opponent’s
behavior was that of an inexcusable jerk, it is also possible you may conclude in this analysis that your opponent’s
behavior was so outrageous that it requires a pointed response, especially if your opponent’s behavior prejudices your
case. But, again, you may be surprised at the number of instances in which you consciously temper your response and thereby
advance the cause of civility.•

__________

Kevin C. Tyra is a director of the Defense Trial Counsel of Indiana and the principal of The Tyra Law
Firm P.C. in Indianapolis. The opinions expressed in this article are those of the author.

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